Equal Employment Opportunity Commission v. Rockwell Inteernational Corp. 00-1897 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 00-1897 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORP., CAMBRIDGE INDUSTRIES, INC., INTERNATIONAL UNION UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and LOCAL 1766 OF UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Honorable Robert W. Gettleman, Judge BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW. Washington, D.C. 20507 (202) 663-4728 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUES 3 STATEMENT OF THE CASE 4 A. Nature of the Case and Course of Proceedings 4 B. Statement of Facts 5 C. District Court Decisions 11 STANDARD OF REVIEW 14 SUMMARY OF ARGUMENT 15 ARGUMENT 16 I. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO CONSIDER THE REPORT AND TESTIMONY OF ROCKWELL'S ERGONOMIST MICHAEL SMITH . . . . . . . . . . . . . . . . . . . . . . 18 II. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO THE DEFENDANTS BECAUSE A REASONABLE JURY COULD FIND THAT ROCKWELL DISCRIMINATED AGAINST THE CLAIMANTS IN VIOLATION OF THE ADA . . . . . 22 A. A reasonable jury could find that Rockwell regarded the claimants as substantially limited in working, and therefore disabled . . . . . . . . . . . . . . . . . 22 B. Because a reasonable jury also could find in favor of the Commission on the remaining elements of its claim that Rockwell discriminated against the claimants in violation of the ADA, this Court must reverse the district court's decision to enter judgment in favor of the defendants-appellees and remand this case for further proceedings . . . . . . . . . . . . . . . . 30 CONCLUSION 31 CERTIFICATE OF COMPLIANCE SEVENTH CIRCUIT RULE 30(D) STATEMENT REGARDING APPENDIX CERTIFICATE OF SERVICE APPENDIX TABLE OF AUTHORITIES CASES PAGE(S) Best v. Shell Oil Co., 107 F.3d 544 (7th Cir. 1997) . . . . . . 27 Bradley v. Work, 154 F.3d 704 (7th Cir. 1998) . . . . . . . . 14 Cochrum v. Old Ben Coal Co., 102 F.3d 908 (7th Cir. 1996) . . . 25 Collins v. Kibort, 143 F.3d 331 (7th Cir. 1998) . . . . . . . . 14 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) . . . . . . . . . . . . . . . . . . . 12 Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . 23, 24 DePaoli v. Abbott Labs., 140 F.3d 668 (7th Cir. 1998) . . . . . 27 Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . 14 Holmes v. Elgin, Joliet & E. Railway Co., 18 F.3d 1393 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 14 Hydrite Chemical Co. v. Calumet Lubricants Co., 47 F.3d 887 (7th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 20 Krocka v. City of Chicago, 203 F.3d 507 (7th Cir. 2000) . . . . 25 Mizwicki v. Helwig, 196 F.3d 828 (7th Cir. 1999) . . . . . . . 20 School Board of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . . . . . . . . . . . . . . 17 Sinkler v. Midwest Property Management Ltd. Partnership, 209 F.3d 678 (7th Cir. 2000) . . . . . . . . . . . . . . . 22 Skorup v. Modern Door Corp., 153 F.3d 512 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . 12, 22 25 Sutton v. United Air Lines, 119 S. Ct. 2139 (1999) . . . . . . 22 STATUTES 28 U.S.C. § 451 . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . 3 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . . 2 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. . 1, 4 42 U.S.C. § 12101(a)(7) . . . . . . . . . . . . . . . . . 17 REGULATIONS 29 C.F.R. § 1630.2(j)(3)(i) . . . . . . . . . . . . . . . . . 23 29 C.F.R. § 1630.2(j)(3)(ii) . . . . . . . . . . . . . . . 19, 24 FEDERAL RULES Fed R. App. P. 42(b) . . . . . . . . . . . . . . . . . . . . . 3 Fed. R. Civ. P. 19(a) . . . . . . . . . . . . . . . . . . . . . 2 Fed. R. Evid. 702 . . . . . . . . . . . . . . . . . . . . . . 11 Fed. R. Evid. 703 . . . . . . . . . . . . . . . . . . . . . . 11 OTHER AUTHORITIES H.R. Rep. 101-485(III), 101st Cong. 2d Sess., reprinted in 1990 U.S.C.C.A.N. 446 . . . . . . . . . . . . 17IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 00-1897 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORP., CAMBRIDGE INDUSTRIES, INC., INTERNATIONAL UNION UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, and LOCAL 1766 OF UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Defendants-Appellees. On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Honorable Robert W. Gettleman, Judge BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT STATEMENT OF JURISDICTION On June 30, 1995, the Equal Employment Opportunity Commission ("Commission") brought this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging that defendant-appellee Rockwell International Corporation ("Rockwell") engaged in unlawful employment discrimination in violation of the ADA. R.1 (complaint).<1> See also R.15 (amended complaint, adding Cambridge Industries, Inc., "Cambridge," as a defendant); R.148 (second amended complaint, adding the International Union and Local 1766 as defendants under Fed. R. Civ. P. 19(a)). In its complaint, the Commission alleged that Rockwell discriminated against 72 individual claimants, each of whom Rockwell perceived to be disabled, by refusing to hire them for vacant positions at its facility in Centralia, Illinois. R.1. The district court's jurisdiction was based on 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. Id. The district court granted Rockwell's motion for summary judgment on August 13, 1999, and entered judgment to that effect on the same day. A2-18; R.225. On August 23, 1999, the Commission filed a motion asking the district court to reconsider its decision to award summary judgment to Rockwell. R.226. The district court denied the Commission's motion to reconsider on December 20, 1999. A19-20. On February 10, 2000, the Commission filed a notice of appeal. R.232. This Court docketed the Commission's appeal on February 15, 2000, assigning the case number 00-1405. On February 17, 2000, this Court requested memoranda on whether the Commission's appeal was premature because the district court had not indicated how it was resolving the Commission's claims against the International Union, Local 1766 ("the Unions") and Cambridge. To resolve the ambiguity relating to those issues, the Commission asked the district court to issue a Rule 58 final judgment order explaining the final disposition of all of the claims in this action. On March 6, 2000, the district court issued a Rule 58 final judgment order stating that it was entering judgment in favor of Rockwell and Cambridge, and explaining that the Commission's claims against the International Union and Local 1766 ("the Unions") were rendered moot by that result.<2> A1. The Commission filed a timely notice of appeal from this order on April 6, 2000. R.241. This Court docketed the Commission's appeal on April 7, 2000, assigning the case number 00-1897. This Court has jurisdiction over the Commission's appeal (00-1897) pursuant to 28 U.S.C. § 1291.<3> There are no other prior or related appellate proceedings in this case. STATEMENT OF THE ISSUES 1. Whether the district court abused its discretion when it denied the Commission's motion to supplement the summary judgment record with the report and testimony of Rockwell's ergonomist, Michael Smith, where the Commission's motion was timely filed and Smith's evidence was relevant to the issues raised in Rockwell's motion for summary judgment, including the question of whether Rockwell regarded the claimants as disabled. 2. Whether the district court erred in awarding summary judgment to Rockwell on the Commission's ADA claims, where a reasonable jury could find that Rockwell regarded the claimants as disabled, and also could find that although the claimants were qualified for the job openings in question, Rockwell refused to hire them because of its perception that they were disabled. STATEMENT OF THE CASE A. Nature of the Case and Course of Proceedings On June 30, 1995, the Commission filed a complaint (amended on December 14, 1995, and June 3, 1998) in federal district court, alleging that Rockwell discriminated against 72 individuals in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq..<4> R.1 (complaint); R.15 (amended complaint); R.148 (second amended complaint). Rockwell filed a motion for summary judgment on December 18, 1998 (see R.181-82), and the Commission filed its response on January 15, 1999 (see R.191). On February 4, 1999, Rockwell filed its reply to the Commission's response. R.202. On approximately May 20, 1999, the Commission filed a motion to supplement its response to Rockwell's motion for summary judgment with, among other things, the report and testimony of ergonomist Michael Smith. R.219. See also A20 (noting that the Commission filed its motion five days before the Daubert hearing scheduled for May 26, 1999). On May 26, 1999, the district court denied the Commission's motion to supplement its summary judgment response. A26-32. The district court heard oral argument on Rockwell's motion for summary judgment on June 22, 1999 (see R.237-2, transcript of proceedings), and granted Rockwell's motion on August 13, 1999, entering judgment to that effect on the same day. A2-18; R.225. On August 23, 1999, the Commission filed a motion asking the court to reconsider both its decision to deny the Commission's request to supplement the summary judgment record and its decision to award summary judgment to Rockwell. R.226. Rockwell filed its response to the Commission's motion on September 30, 1998 (see R.228), and the Commission filed its reply to Rockwell's response on October 15, 1999 (see R.230). The district court denied the Commission's motion to reconsider on December 20, 1999. A19-20. On March 6, 2000, the district court issued a Rule 58 final judgment order stating that judgment was entered in favor of Rockwell and Cambridge, rendering moot the Commission's claims against the Unions. A1. The Commission timely filed its notice of appeal on April 6, 2000. R.241. B. Statement of Facts In the early 1990's, Rockwell operated a manufacturing plant in Centralia, Illinois, where it produced parts for automobiles such as hoods, fenders and tailgates. R.183 ¶ 1 (Rockwell's Statement of Undisputed Facts); R.193 ¶¶ 20-21 (Commission's Statement of Additional Undisputed Facts). From January 1992 to September 1995, Rockwell hired approximately 500 to 600 employees at its Centralia location, placing over 90% of these individuals in the entry-level positions of trimmer, finisher and final finisher. R.183 ¶¶ 3-4; R.193 ¶ 27. Rockwell also hired applicants into the assembler, molder, multi-operator and RTM operator positions. R.193 ¶¶ 16-19. As part of its application process, Rockwell required all applicants to undergo nerve conduction testing. R.183 ¶ 9. Rockwell began using nerve conduction tests in 1985 as a means for reducing the rate of cumulative trauma disorders (such as carpal tunnel syndrome and tendinitis) in its workforce, and used the test results as a basis for screening out applicants for all of the positions listed above (trimmer, finisher and final finisher, assembler, molder, multi-operator and RTM operator). R.183 ¶¶ 9-10; R.192 ¶ 14 (Commission's Response to Rockwell's Statement of Undisputed Facts). In a nerve conduction test, a peripheral nerve in the body is stimulated with electric shocks along its path to a muscle, to determine the time it takes the nerve to conduct the impulse. R.183 ¶ 9 n.3. The results of a nerve conduction test help to confirm neuropathy (e.g., sensory loss) in the area being tested. R.183 ¶ 9 n.3. In this case, Rockwell performed the test on the median nerve.<5> See generally R.183 ¶ 9 & n.3; R.193 ¶¶ 7-9. There is no scientific evidence that an abnormal result on a nerve conduction test of the median nerve, in and of itself, can predict whether an individual will develop carpal tunnel syndrome in the future. R.193 ¶ 8. Instead, an individual can have an abnormal test result and still have normal hand function with no symptoms of carpal tunnel syndrome and with no observable impairments. R.193 ¶ 7. Nerve conduction tests are irrelevant to determining whether an individual may develop tenosynovitis or tendinitis, because these conditions relate to tendons, and are not caused by the impairment of the median nerve. R.193 ¶ 9. Between July 26, 1992 and August 1, 1994, Rockwell denied employment to the 72 individual claimants in this case.<6> See R.183 ¶ 11 (applicants required to undergo nerve conduction testing during this time period). Rockwell rejected these individuals because their results on the nerve conduction test were not within what Rockwell determined to be the "normal range." R.192 ¶ 14; R.193 ¶ 6. Rockwell viewed all applicants with "abnormal" nerve conduction test results as ineligible for hire into any of the seven entry-level positions with the company. R.192 ¶ 14. As Rockwell explained, it believed that applicants with abnormal test results would develop cumulative trauma disorders such as carpal tunnel syndrome, tenosynovitis and tendinitis if they worked in the trimmer, finisher, final finisher or assembler positions because those positions involved "continuing repetitive motions and/or [the use of] vibratory power tools." R.183 ¶ 19; R.193 ¶ 1. As for the remaining three positions (molder, multi-operator and RTM operator), Rockwell rejected applicants with abnormal nerve conduction test results as well, but did so because the individuals hired into these positions could be bumped from their jobs by more senior employees, and thus might later be expected to work as trimmers, finishers, final finishers or assemblers. R.192 ¶ 14; R.193 ¶¶ 16, 19; R.200 ¶ 16 (Rockwell's Reply to the Commission's Statement of Additional Undisputed Facts). Rockwell excluded the applicants from all seven positions despite the variation among the positions in the physical activity required and in the types of vibratory tools used.<7> R.183 ¶¶ 17-18. The nerve conduction testing used by Rockwell occurred primarily at two locations: St. Mary's Hospital in Centralia, Illinois, and the Physical Rehabilitation Center in Mount Vernon, Illinois. R.193 ¶ 3. On February 3, 1994, Dr. Nemani, who performed Rockwell's pre-employment nerve conduction tests at St. Mary's Hospital, informed Rockwell "that there are many patients who have neurophysiological evidence of [carpal tunnel syndrome] and may be completely asymptomatic." R.193 ¶ 4. Despite this information and Dr. Nemani's advice (provided on the forms he used to report test results) that individuals with abnormal results undergo a full neurophysiological evaluation, Rockwell made no changes to its nerve conduction testing procedures. R.193 ¶¶ 4-5. On approximately June 23, 1993, Dr. Froeling contacted Rockwell regarding the nerve conduction testing at the Physical Rehabilitation Center. R.193 ¶ 6. Dr. Froeling recommended that Rockwell expand its range of "normal" results on the nerve conduction tests by raising the acceptable sensory latency reading from 3.2 msec to 3.5 msec. R.193 ¶ 6. Rockwell accepted this recommendation, and also extended offers of employment to several applicants who had been rejected under the 3.2 msec standard, but could meet the new standard. R.193 ¶ 6. Through this review process, in August and September 1993 Rockwell hired 15 of the 72 claimants in this case (each of the 72 claimants had been deemed unqualified under the 3.2 msec standard). R.193 ¶ 6. Michael Smith, one of Rockwell's ergonomists, studied the physical activity and risks associated with the assembler, molder, finisher and trimmer positions.<8> See generally A33-37. In his study, Smith calculated the average and median percentages of time that an employee in these positions would have to spend doing repetitive or forceful motions with his or her upper extremities, and reached the following conclusions: Job Name Average Percentage Median Percentage Assembler 45% 37% Molder 36% 34% Finisher 80% 79% Trimmer 37% 39% A34 ¶ 2. Depending on the specific job and the specific product being worked on, the percentage of time an employee would have to spend doing repetitive or forceful motions with his or her upper extremities ranged from 12 to 92 percent.<9> A34-35 ¶ 5 & n.1. Smith also calculated the average number of upper extremity motions per hour for the jobs at Rockwell, and compared them to the rates of repetition in jobs in other fields. A36 ¶¶ 6-10. For example, Smith determined that the molder positions at Rockwell involved an average of approximately 500 upper extremity motions per hour, while the assembler position in the Aerostar inner staging area involved an average of 870 upper extremity motions per hour. A36 ¶¶ 6-7. As Smith indicated, the repetition rate in the molder positions at Rockwell was similar to that of a job stocking shelves in a warehouse at J.C. Penney. A36 ¶ 6. The repetition rate in other fields, meanwhile, exceeds the rates required for some of the entry level positions at Rockwell, as both butchers in meat processing plants and video display operators taking telephone orders engage in over 900 upper extremity motions per hour. A36 ¶¶ 7-8. Smith also testified that letter sorters may sort 1200 documents by hand in an hour, and grocery store checkout clerks working on a busy day in a large community may scan between 2500-3500 items per hour. A36 ¶¶ 9-10. C. District Court Decisions On June 30, 1995, the Commission filed this action in federal court, alleging that Rockwell violated the ADA when it refused to hire the 72 claimants in 1992 and 1993 because of their results on their nerve conduction tests. R.1. On December 18, 1998, Rockwell filed a motion for summary judgment, arguing that the Commission could not establish that Rockwell regarded the claimants as being disabled. R.181-82. Rockwell also argued that the testimony of Dr. Michael Brethauer, one of the Commission's expert witnesses, was inadmissible under Fed. R. Evid. 702 and 703. R.181-82. After briefing in connection with Rockwell's motion, the Commission sought to supplement the summary judgment record with portions of Smith's report and testimony. R.219 (Commission's Motion to Supplement its Summary Judgment Response); A33-37. The district court denied the Commission's motion on May 26, 1999, stating in an oral ruling that it already was inclined to deny Rockwell's motion for summary judgment, and would not allow the record to be supplemented because the motion had been fully briefed. A26-32. On August 13, 1999, the district court decided to award summary judgment to Rockwell on the ground that no reasonable jury relying on the admissible evidence presented could conclude that Rockwell regarded the claimants as being disabled. A2-18. In its opinion, the district court stated that "the sole issue is whether [Rockwell] regarded Claimants as having [an impairment that substantially limited one of their major life activities] when it rejected their employment applications based on the abnormal nerve conduction test result[s]." A4. In its brief and at the summary judgment hearing, the Commission argued that it could withstand Rockwell's motion for summary judgment based on Rockwell's admissions that it excluded the claimants from jobs that involved frequent repetitive motion and/or the use of vibratory tools,<10> and that the company's policy excluded the claimants from 90% of the hiring opportunities at the Centralia facility during the relevant time period. See A14-15. The district court rejected the Commission's argument, stating that Rockwell's admissions were insufficient to create a triable issue of fact where no evidence demonstrated that Rockwell viewed the claimants as limited in their ability to work in general.<11> A15. Citing this Court's decision in Skorup v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998), the district court reasoned that the Commission did not present evidence demonstrating that the claimants, as perceived by Rockwell, would not have been able to meet the requirements of a class or broad range of jobs in the relevant geographic area. A15-16. Because the district court believed the Commission did not present this type of evidence, the court determined that the Commission could not establish that Rockwell regarded the claimants as being disabled. A17. Accordingly, the district court awarded summary judgment to Rockwell, entering its judgment on August 13, 1999. A18; R.225. On August 23, 1999, the Commission filed a motion asking the district court to reconsider its decision to award summary judgment to Rockwell. R.226. In connection with this request, the Commission also asked the court to reconsider its May 26, 1999 order in which it denied the Commission's motion to supplement the summary judgment record with (among other things) ergonomist Michael Smith's report and testimony. R.226 at 7-9. On December 20, 1999, the district court denied the Commission's motion in its entirety. A19-20. The court said little about why it refused to consider Smith's report and testimony, stating only that: (1) the Commission's motion to supplement the record was untimely because the Commission had the information in its possession for a number of months; and (2) the Commission's motion to supplement the record raised issues that were irrelevant to the ones under consideration by the court.<12> A20. STANDARD OF REVIEW This Court reviews de novo a district court's decision to award summary judgment. Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998). In reviewing the record, this Court "construe[s] all inferences in favor of the party against whom the motion under consideration is made." Id. Because Rockwell has filed a motion for summary judgment against the Commission, this Court must "examine the record in the light most favorable to [the Commission], granting [it] the benefit of all reasonable inferences that may be drawn from the evidence," and must reverse if the Court finds "a genuine issue concerning any fact that might affect the outcome of the case." Id. In the context of reviewing a district court's decision to award summary judgment, this Court reviews the district court's underlying evidentiary rulings for abuse of discretion. See Bradley v. Work, 154 F.3d 704, 708-09 (7th Cir. 1998). This Court may reverse a district court's evidentiary ruling where the district court's "decision is based on an erroneous conclusion of law," "where the record contains no evidence on which [the court] rationally could have based [its] decision," or "where the supposed facts found are clearly erroneous" (see Collins v. Kibort, 143 F.3d 331, 336-37 (7th Cir. 1998) (internal quotation marks omitted)), provided that the error was not harmless. See Holmes v. Elgin, Joliet & E. Ry. Co., 18 F.3d 1393, 1397 (7th Cir. 1994). SUMMARY OF ARGUMENT This Court should reverse the district court's decision to award summary judgment to defendants. Summary judgment was improper in this case because a reasonable jury could find that Rockwell violated the ADA by regarding the claimants as substantially limited in working, and then refusing to hire them because of their perceived limitations. As a preliminary matter, the district court abused its discretion when it denied the Commission's motion to supplement the summary judgment record with the report and testimony of Rockwell's ergonomist, Michael Smith. Although this Court may reverse the district court's decision to award summary judgment to Rockwell without Smith's evidence, the Commission submits that Smith's evidence should be considered because, contrary to the district court's conclusion, the Commission's motion to supplement the record was timely, and Smith's evidence clearly is relevant to the issue of whether Rockwell regarded the claimants as being substantially limited in working. Summary judgment was not appropriate in this case because a reasonable jury could find that Rockwell ran afoul of the ADA by regarding the claimants as being substantially limited in working, and then refusing to hire them because of their perceived limitations. The Commission presented evidence that would permit a reasonable jury to find that, due to the claimants' results on their nerve conduction tests, Rockwell believed that the claimants were significantly restricted in their ability to perform the broad range of jobs that involves either frequent repetitive motion with the upper extremities or the use of vibratory power tools. The Commission also presented evidence that would allow a reasonable jury to find that Rockwell believed the claimants were significantly restricted in their ability to perform a class of jobs (such as the class of production or assembly line jobs). Because of this evidence, and because of Smith's evidence (which supports the conclusion that Rockwell regarded the claimants as being substantially limited in working), this Court should reverse the district court's decision to award summary judgment to defendants. A reasonable jury easily could conclude that Rockwell regarded the claimants as disabled, and could also find in favor of the Commission on the remaining elements of its claim that Rockwell discriminated against the claimants in violation of the ADA. ARGUMENT The basic facts in this case are relatively straightforward - between July 26, 1992 and August 1, 1994, each of the 72 claimants applied to work at Rockwell's Centralia, Illinois facility. Although all of the claimants were qualified, Rockwell rejected each of their applications for one single reason - their results on the nerve conduction tests required by Rockwell fell outside of the acceptable range, as determined by the company. It did not matter that, as far as Rockwell knew, none of the claimants had an actual impairment or disability that would have prevented them from performing the essential functions of the jobs in question. Nor did it matter that Rockwell had reason to know that the nerve conduction tests do not even predict the likelihood that an individual will develop carpal tunnel syndrome or some other type of repetitive stress injury in the future. Instead, Rockwell viewed the claimants' "abnormal" test results as sufficient reason to exclude the claimants from several different jobs, irrespective of the divergent skills, activity levels, tools, and responsibilities required for the various job openings. The Commission believes that Rockwell's treatment of the claimants presents a clear case of disability discrimination based on unfounded fears, myths and stereotypes. As the analysis in section II (below) will demonstrate, a reasonable jury could find that Rockwell violated the ADA when it regarded the claimants as being substantially limited in working (and thus regarded them as disabled), and then refused to hire the claimants because of its misguided perception that they had disabilities. To uphold Congress' intent to eradicate discrimination based on myths, fears and stereotypes,<13> this Court should reverse the district court's decision to award summary judgment to Rockwell, and remand this case to allow the Commission to proceed with its ADA claims. I. THE DISTRICT COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO CONSIDER THE REPORT AND TESTIMONY OF ROCKWELL'S ERGONOMIST MICHAEL SMITH The district court abused its discretion when it denied the Commission's motion to supplement the summary judgment record with the report and testimony of Rockwell's ergonomist Michael Smith. Although this Court may reverse the district court's decision to award summary judgment to Rockwell without Smith's report and testimony, the Court should reject the district court's erroneous decision to deny the Commission's motion to supplement the summary judgment record, and should consider Smith's evidence in assessing whether a reasonable jury could find that Rockwell regarded the claimants as having disabilities. The district court denied the Commission's motion to supplement the summary judgment record because the court believed the Commission's motion was untimely and the evidence provided by Smith was irrelevant to the issues presented in Rockwell's motion for summary judgment. The district court erred on both points. First, the Commission's request to supplement the record with Smith's evidence was timely. Smith produced his report on March 8, 1999, and testified at his deposition on March 30, 1999. The Commission filed its motion to supplement the record with this evidence on May 20, 1999, a mere 1.5 months after it received Smith's testimony. Because the district court received the Commission's motion before it heard oral argument (on June 22, 1999) regarding Rockwell's motion for summary judgment, it should have considered Smith's evidence. Indeed, because Smith was Rockwell's expert, there was no risk that Rockwell would suffer undue prejudice or that the proceedings would be delayed (by an additional Daubert hearing, for example) if the court considered Smith's report and testimony. See A30 (Rockwell arguing that it would request a Daubert hearing regarding the testimony of one of the Commission's experts, but not mentioning any such hearing with regard to Smith). Second, the district court inexplicably failed to recognize that Smith's report and testimony address issues that clearly are relevant to the issue of whether Rockwell regarded the claimants as being substantially limited in working. In his report and testimony, Smith outlined the skills and physical abilities required for the jobs at Rockwell from which the claimants were excluded. Smith also discussed the skills and abilities required for a selection of jobs in other fields. This evidence is directly relevant to the question at hand - whether Rockwell's perception of the claimants amounted to regarding them as being unable to work in a class or broad range of jobs. See 29 C.F.R. § 1630.2(j)(3)(ii) (noting that the characteristics of the desired job and of jobs in other fields may be considered when determining whether an individual is substantially limited in working). Indeed, the Commission explained the relevance of Smith's evidence to the district court during the hearing on the Commission's motion to supplement the summary judgment record, explaining that Smith's evidence was relevant to "whether Rockwell regarded the claimants as significantly limited as to either a class of jobs or a broad range of jobs." A28. Despite that explanation, however, the district court determined that the Commission was only presenting Smith's evidence to rebut an argument that Rockwell had abandoned for purposes of its summary judgment motion. See A20 (stating that the court believed that the predominant reason the Commission sought to introduce the evidence in its supplemental filing was to rebut Rockwell's argument that it only regarded the claimants as being unable to perform jobs that required both constant repetitive motion and the use of vibratory power tools). It is clear, then, that the district court misunderstood the principal reason why the Commission asked the court to consider Smith's evidence in considering the merits of Rockwell's motion for summary judgment. Because the district court's refusal to consider Smith's evidence is based on that misunderstanding, the court's ruling constitutes an abuse of discretion because there are serious grounds for doubting whether the court's ruling was based on a proper understanding of the issues, and no reasonable person could agree that the evidence presented in Smith's report and testimony are irrelevant to the question of whether Rockwell regarded the claimants as substantially limited in working and therefore disabled. See Mizwicki v. Helwig, 196 F.3d 828, 833 (7th Cir. 1999) (explaining that, where "it is clear that no reasonable person would rule as did the district court judge," the judge's ruling constitutes an abuse of discretion); Hydrite Chem. Co. v. Calumet Lubricants Co., 47 F.3d 887, 892 (7th Cir. 1995) (explaining that the district court is not entitled to deference "when there are serious grounds for doubt" about whether the court's evidentiary ruling was based on a correct understanding of the applicable rules). Finally, because the court's error prejudiced its review of the Commission's case, the error cannot be deemed harmless. Specifically, to the extent that the district court (erroneously) believed the Commission's evidence was insufficient to withstand Rockwell's motion for summary judgment, it was improper to refuse to consider Smith's evidence, which supports the Commission's position that Rockwell regarded the claimants as disabled. See infra pp. 27-29. Because the district court's reasons for refusing to consider Smith's report and testimony are invalid, and because the evidence in those documents should have led the district court to deny Rockwell's motion, this Court should hold that the district court abused its discretion when it denied the Commission's motion to supplement the summary judgment record with that evidence, and should consider Smith's report and testimony in determining whether a reasonable jury could find that Rockwell regarded the claimants as disabled. II. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO THE DEFENDANTS BECAUSE A REASONABLE JURY COULD FIND THAT ROCKWELL DISCRIMINATED AGAINST THE CLAIMANTS IN VIOLATION OF THE ADA A. A reasonable jury could find that Rockwell regarded the claimants as substantially limited in working, and therefore disabled It is well established that "[a]n employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity." Sutton v. United Air Lines, 119 S. Ct. 2139, 2150 (1999). In light of this basic proposition, the district court erred when it rejected the Commission's ADA claims in this case. As the analysis below demonstrates, summary judgment was improper because a reasonable jury could find that Rockwell ran afoul of the ADA by regarding the claimants as being substantially limited in working,<14> and then refusing to hire them because of their perceived limitations.<15> As this Court has held, the plaintiff's burden when showing a substantial limitation in working is not an onerous one. Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 507 (7th Cir. 1998). Instead, a plaintiff may reach a jury on the issue by presenting "some evidence from which one might infer that [the individual] faced 'significant restrictions' in her ability to meet the requirements of other jobs." Id. Specifically, an individual may reach a jury on whether her employer regarded her as substantially limited in working if there is some evidence from which a jury might infer that the employer regarded the individual as being "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i) (defining, in the context where the major life activity is "working," the term "substantially limits"). See also Davidson, 133 F.3d at 506 (outlining this framework).<16> Under this framework, the Commission's ADA claims in this case should have survived Rockwell's motion for summary judgment because the Commission did present enough evidence for a jury to find that Rockwell perceived the claimants as significantly restricted in their ability to meet the requirements of other jobs. First, a reasonable jury could find that Rockwell regarded the claimants as significantly restricted in their ability to perform a broad range of jobs. By Rockwell's own admission, it believed that due to the claimants' abnormal results on their nerve conduction tests, the claimants were not able to perform jobs that involved either frequent repetitive motion with the upper extremities or the use of vibratory power tools. See supra pp. 7-8, 12 n.10. Because of this perception, Rockwell determined that the claimants could not work in any of the different positions in the production process (trimmer, assembler, finisher, molder, final finisher, multi-operator and RTM operator), without regard to the different tools, skills, and amounts of repetitive motion required for the various positions. See supra 7-8 & n.7. Thus, in Rockwell's eyes, the fact that the claimants had abnormal scores on their nerve conduction tests was sufficient to exclude them from any job in the production process that involved frequent repetitive motion or the use of vibratory power tools. Rockwell's sweeping determinations about the claimants' fitness for work are sufficient under this Court's case law to establish that Rockwell regarded the claimants as being substantially limited in a broad range of jobs (e.g., any job involving frequent repetitive motion and/or the use of vibratory power tools). See Krocka v. City of Chicago, 203 F.3d 507, 515 (7th Cir. 2000) (explaining that the results of an employer's evaluation of an employee's ability to work in a desired job "may indicate the employer's perception of the employee's ability to function on the job and thus provide some evidence that the employer regarded the employee as disabled"). See also Skorup, 153 F.3d at 515 (a plaintiff seeking to demonstrate a substantial limitation in working does not have to establish the precise percentage of jobs that his impairment prevents him from performing). As this Court has indicated, an individual can establish that he or she is substantially limited in working by showing that he or she has physical restrictions that "are more than job specific" and thus "might apply to a broad range of jobs." Cochrum v. Old Ben Coal Co., 102 F.3d 908, 911 (7th Cir. 1996) (jury could find that the plaintiff was substantially limited in working because his physical restrictions - no overhead work, heavy lifting, or pushing or pulling out from his body - were broad enough to disqualify him not only from any position at the mine where he worked, but also from jobs in related fields such as construction). The Commission has met this standard as to the claimants in this case, as it is clear that Rockwell perceived the claimants as being unable to engage in frequent repetitive motion or the use of vibratory power tools. Because a reasonable jury could find that these perceived limitations are more than job specific and might apply to a broad range of jobs (for example, to jobs in manufacturing or construction in addition to the openings at Rockwell), the district court should have allowed the Commission to proceed with its claim that Rockwell regarded the claimants as disabled. Second, a reasonable jury could conclude that Rockwell regarded the claimants as being substantially limited in performing a class of jobs. As noted above, Rockwell excluded the claimants from several different production positions at its Centralia facility. Because of the divergent activities, skills and tools required for each position, however, Rockwell cannot argue that it was simply making an individualized assessment of whether each claimant could perform the job duties of the vacant positions. See supra pp. 6-8 & n.7 (describing the different tools and activities required for the various jobs at Rockwell, and noting that depending on the employee's job, an employee could handle anywhere from 30 to 1000 parts in an eight-hour shift, with each part weighing anywhere from ½ to 75 pounds). Instead, the exclusion was unequivocal - Rockwell denied the claimants jobs at the facility because, irrespective of the particular tools and activities associated with the various positions, Rockwell simply did not believe that the claimants could do work that involved any kind of frequent repetitive motion and/or use of vibratory power tools. Consistent with this Court's precedent, a reasonable jury could find, based on the evidence presented, that Rockwell regarded the claimants as disabled because it perceived them as significantly restricted in their ability to perform a class of jobs (e.g., production or assembly line jobs). See DePaoli v. Abbott Labs., 140 F.3d 668, 673 (7th Cir. 1998) (indicating that assembly line work can be a class of jobs under the ADA, and that a jury could find that the plaintiff, who could not perform repetitive motions with her right hand, was disabled because she was significantly restricted in her ability to perform that class of jobs); Best v. Shell Oil Co., 107 F.3d 544, 548 (7th Cir. 1997) (employer's unequivocal perception that plaintiff should find a new line of work because his knee injury would prevent him from driving was sufficient to establish a substantial limitation in working as a truck driver). Although the preceding evidence alone establishes that this Court should reverse the district court's decision to award summary judgment to Rockwell because a reasonable jury could find that Rockwell regarded the claimants as being disabled, the report and testimony of Rockwell's ergonomist Michael Smith also support the conclusion that Rockwell regarded the claimants as substantially limited in working. By comparing the quantity of upper extremity motions in the jobs Rockwell denied the claimants with the quantity required in a variety of other jobs, Smith's report and testimony demonstrate how the limitations that Rockwell perceived would affect the claimants' ability to perform a broad range of jobs. As Smith explained, an employee working as a molder at Rockwell performs an average of 500 upper extremity motions per hour. See supra p. 10. By comparison, an individual stocking shelves in a warehouse at J.C. Penney would have a similar repetitive motion rate, while individuals working in other jobs would have much higher rates. See id. For example, an individual working as a video display operator taking telephone orders would perform 900 motions per hour, a butcher working in a meat processing plant would perform 900 per hour, a letter sorter would perform 1200 per hour, and a grocery store checkout clerk would perform 2500-3500 per hour under certain circumstances. See id. at 10-11. Because Rockwell (among other things) perceived the claimants as being unable to perform the repetitive motion rate required to work as a molder (500 upper extremity motions per hour), it necessarily perceived the claimants as also being unable to fill jobs (such as the ones listed above) in other classes that require a similar or greater rate of motion. A jury reviewing Smith's report and testimony accordingly could find that Rockwell regarded the claimants as being significantly restricted in their ability to work in a broad range of jobs. Smith also provided evidence that supports the conclusion that Rockwell regarded the claimants as being significantly restricted in their ability to work in a class of jobs. From Smith's analysis, it is clear that the jobs from which the claimants were excluded at Rockwell varied substantially in the amount of upper extremity repetitive motion required. Indeed, despite the fact that an employee in one of the production jobs might spend anywhere from 12% to 92% of his or her work day doing repetitive motion (see supra pp. 9-10 & n.9), Rockwell excluded the claimants from all of the jobs. A reasonable jury considering this evidence could find that Rockwell effectively believed that the claimants simply could not work at any production job that required some amount of repetitive motion and, accordingly, conclude that Rockwell regarded the claimants as unable (or certainly significantly restricted) in their ability to work in that class of jobs. Viewed as a whole, the Commission's evidence clearly establishes that Rockwell regarded the claimants as being substantially limited in working. Rockwell rejected the claimants' applications for employment solely because it believed, based on the dubious results of its nerve conduction test, that the claimants could not engage in activities that involved frequent repetitive motion or the use of vibratory power tools. Instead of exploring whether its perceptions were accurate or whether the claimants could have filled one of its vacancies despite the limitations Rockwell perceived to exist, Rockwell simply assumed that the claimants could not perform the physical activities required for any of its various entry level positions. Because a reasonable jury presented with Rockwell's broad sweeping assumptions about the claimants' physical abilities easily could find that Rockwell regarded the claimants as being substantially limited in working, the district court's holding that Rockwell did not regard the claimants as disabled must be reversed. B. Because a reasonable jury also could find in favor of the Commission on the remaining elements of its claim that Rockwell discriminated against the claimants in violation of the ADA, this Court must reverse the district court's decision to enter judgment in favor of the defendants-appellees and remand this case for further proceedings Based on the preceding analysis, a reasonable jury could find that Rockwell regarded the claimants as being disabled. This Court now should remand the Commission's ADA claims for further proceedings because there is no alternative basis in the record that would allow this Court to affirm the district court's decision. Instead, a reasonable jury could find in favor of the Commission on each of the remaining elements of the Commission's claims that Rockwell discriminated against the claimants because of their perceived disabilities. Simply put, there is little, if any, dispute about the remaining elements of the Commission's claims in this case. First, Rockwell effectively has conceded that each claimant was qualified. Rockwell in fact said as much in its response to the Commission's motion for partial summary judgment, explaining that it did not oppose the Commission's position that "'each claimant was qualified and not a direct threat as of the date of his/her nerve conduction test,'" excluding conditions of the median nerve that might be disclosed by the test. See R.207 at 1. Because nothing in the record suggests that the nerve conduction tests disclosed actual conditions of the median nerve that would have rendered the claimants unqualified for the job vacancies at Rockwell, a reasonable jury easily could find that the claimants were qualified. Second, a reasonable jury could find that Rockwell refused to hire the claimants solely because of their perceived disabilities. There is no dispute that Rockwell rejected the claimants' job applications solely because of the claimants' scores on their nerve conduction tests. Because a reasonable jury could find that Rockwell, through this practice, regarded the claimants as disabled (see section II(A), above) and simultaneously denied them employment because of that perception, this Court should reverse the district court's decision to award summary judgment to Rockwell and remand this case to allow the Commission to proceed with its claims under the ADA. CONCLUSION For the foregoing reasons, this Court should reverse the district court's erroneous decision and remand for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 June 16, 2000 (202) 663-4728 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in FRAP 29(d) and 32(a)(7)(B). This brief contains 7,845 words. GEOFFREY L.J. CARTER SEVENTH CIRCUIT RULE 30(D) STATEMENT REGARDING APPENDIX I certify that the appendix to this brief contains all materials required by Seventh Circuit Rules 30(a) and 30(b). GEOFFREY L.J. CARTERCERTIFICATE OF SERVICE I, Geoffrey L.J. Carter, hereby certify that on this 16th day of June, 2000, two copies of the attached brief, and one copy of the attached brief on digital media, were sent by first class mail, postage prepaid, to each of the following counsel of record: Nina G. Stillman, Esq. Vedder, Price, Kaufman, and Kammholz 222 N. LaSalle Street, # 2600 Chicago, Illinois 60601 Melanie LaFave, Esq. Jaffe, Raitt, Heuer and Weiss One Woodward Ave., # 2400 Detroit, Michigan, 48226 Marsha Tolchin, Esq. Ungaretti and Harris Three First National Plaza, # 3500 Chicago, Illinois 60602 Barbara Hillman, Esq. Gail Mrozowski, Esq. Peter Swanson, Esq. Cornfield and Feldman 25 E. Washington, Suite 1400 Chicago, IL 60602. Michael Erp, Esq. Martha Garcia, Esq. Katz, Friedman, Schur and Eagle 77 W. Washington Street, 20th Floor Chicago, Illinois 60602-2801 GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 June 16, 2000 (202) 663-4728 APPENDIX 1. R.238 - March 6, 2000 Rule 58 final judgment order entering judgment in favor of defendants (A1) 2. R.224 - August 13, 1999 order granting Rockwell's motion for summary judgment (A2-18) 3. R.231 - December 20, 1999 order denying the Commission's motion asking the district court to reconsider its decision to award summary judgment to Rockwell (A19-20) 4. R.237-2 - Excerpts of Transcript of summary judgment hearing on June 22, 1999 (A21-25) 5. R.237-1 - Excerpts of Transcript of hearing held on May 26, 1999 (district court's decision to deny Commission's motion to supplement the summary judgment record) (A26-32) 6. R.254 - Commission's May 20, 1999 Supplement to Statement of Additional Undisputed Facts Submitted in Response to Rockwell's Summary Judgment Motion (summarizing Michael Smith's report & testimony - attachments omitted) (A33-37) 1 Citations in the form "R.*" refer to the docket entry number listed on the district court's docket sheet. Citations in the form "A*" refer to the consecutive page numbers in the appendix attached to this brief. 2 Throughout this brief, the Commission discusses the district court's decision to award summary judgment to Rockwell. The Commission emphasizes, however, that its arguments apply to each of the defendants-appellees, because the district court's decisions as to Cambridge and the Unions are based on the district court's erroneous conclusion that Rockwell was entitled to prevail on its motion for summary judgment. 3 On April 21, 2000 the Commission filed a motion to dismiss appeal number 00-1405 under Fed R. App. P. 42(b), which allows for the voluntary dismissal of appeals. This Court granted the Commission's motion on April 26, 2000. 4 Although some of the claimants intervened in this litigation (see, e.g., R.42 (Intervenor's complaint)), they have settled or otherwise resolved their claims against the defendants. Accordingly, the Commission does not discuss the procedural history of their claims. 5 The median nerve is located in the hand, wrist and arm. See Stedman's Medical Dictionary 1043 (26th ed. 1995) (providing a diagram of the nerves of the arm). 6 On August 1, 1994, defendant-appellee Cambridge Industries, Inc. purchased the Centralia facility from Rockwell. R.183 ¶ 5. 7 Depending on the employee's job, in an eight-hour shift he or she could handle anywhere from 30 to 1000 parts, with each part weighing between ½ and 75 pounds. R.183 ¶ 17. The vibratory tools used for each job varied as well, as an employee in the trimmer position used pneumatic orbital sanders, routers and right-angle grinders, while an assembler used impact wrenches, pneumatic hand drills and pneumatic ratchet wrenches. R.183 ¶ 18. See also id. (noting that finishers used orbital sanders, pneumatic routers, hand drills and pencil grinders, while final finishers used tap wrenches, orbital sanders, pneumatic routers, hand drills and pencil grinders). 8 Smith issued his report on March 8, 1999, and was deposed by the Commission on March 30, 1999. 9 Smith's calculations for the percentage of upper extremity motion in each job produced the following results: 1) trimmer for 530 fender = 12% 2) assembler for freightliner hood, after bonding = 20% 3) molder for 530 fender = 33% 4) molder for 530 hood front = 34% 5) assembler for Aerostar liftgate inner = 35% 6) assembler for freightliner hood, bonding area = 36% 7) assembler for freightliner hood, after bonding = 38% 8) trimmer for Aerostar liftgate outer = 39% 9) molder for liftgate outer = 41% 10) assembler for liftgate outer = 48% 11) trimmer for 530 hood front = 60% 12) finisher for 530 fender = 69% 13) finisher for 530 GM hood outer front = 78% 14) finisher for Aerostar liftgate outer = 81% 15) assembler for Aerostar inner staging area = 91% 16) final finisher for Viper hood = 92% 10 For purposes of its summary judgment motion, Rockwell conceded that insofar as it stated that the factory positions required "continuing repetitive motion and/or the use of vibratory power tools," the term "continuing" meant "frequent" (or greater). A25. 11 The district court devoted much of its opinion to the preliminary question of whether it could consider the report and testimony of Dr. Michael Brethauer, one of the Commission's expert witnesses. See A6-14. The district court held that Dr. Brethauer's report and testimony were inadmissible under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See A13-14. Although the Commission disagrees with the district court's ruling as to Dr. Brethauer's report and testimony, the Commission does not challenge the district court's ruling on that issue in this appeal. 12 The district court also held that it would not reconsider any portion of Dr. Brethauer's report and testimony because all of the evidence provided by Dr. Brethauer was inadmissible. A19. As previously noted, the Commission does not challenge this ruling. 13 See, e.g., 42 U.S.C. § 12101(a)(7) (Congressional finding that individuals with disabilities have been faced with restrictions that "result from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society"). See also School Bd. of Nassau County v. Arline, 480 U.S. 273, 284-85 (1987) (noting that the Rehabilitation Act "is carefully structured to replace [] reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments"); H.R. Rep. 101-485(III), 101st Cong. 2d Sess. 25, reprinted in 1990 U.S.C.C.A.N. 446, 448 (indicating that Congress enacted the ADA in part to respond to the problems presented by "discriminatory policies based on unfounded, outmoded stereotypes and perceptions, and deeply imbedded prejudices towards people with disabilities"). 14 This Court recognizes working as a major life activity. See Sinkler v. Midwest Property Management Ltd. Partnership, 209 F.3d 678, 684 n.1 (7th Cir. 2000) (following 7th Circuit precedent and recognizing working as a major life activity). 15 In this circuit, the standard of proof for showing that an employer regarded an individual as being "substantially limited" in a major life activity is "comparable" to the standard of proof for showing that an individual actually is substantially limited. Skorup v. Modern Door Corp., 153 F.3d 512, 515 (7th Cir. 1998) (citing Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998)). Accordingly, in this brief the Commission refers to both actual disability and "regarded as" cases in support of its argument that Rockwell regarded the claimants as being substantially limited in working, and therefore disabled. See infra pp. 23-29. 16 In assessing whether an individual is substantially limited in working, courts may consider factors such as: (1) the geographical area to which the individual has reasonable access; (2) the job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or (3) the job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes). 29 C.F.R. § 1630.2(j)(3)(ii) (emphasis added). See also Davidson, 133 F.3d at 506 n.4 (citing 29 C.F.R. § 1630.2(j)(3)(ii)).